Local Union No. 174, Teamsters

National Labor Relations Board - Board Decisions

Mar 12, 1968

170 N.L.R.B. 281 (N.L.R.B. 1968)

LOCAL UNION NO . 174, TEAMSTERS
Local Union No. 174, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America and Durell Products , Inc. Case
19-CP-107
March 12, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 12, 1967, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respon-
dent filed a brief in support of the Trial Examiner's
Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' Subsequent to the issuance of the Trial Examiner's Decision , pttorney for
the Charging Party filed a motion for an order allowing appearance as at-
torney, and a motion to reopen the record . Thereafter, the Respondent
filed a statement in opposition to the motions . The motion for an order al-
lowing appearance of attorney is hereby granted.
Charging Party's motion to reopen the record to receive the testimony of
Attorney Hafer is denied . Although the parties could have called Hafer to
testify at the hearing, they chose not to do so. Furthermore, in view of our
determination herein, see footnote 2, the evidence which Charging Party
seeks to offer would, not affect our disposition of this case.
' In agreeing with the Trial Examiner that the Respondent did not violate
Section 8(b)(7)(A) of the Act, we rely only on his conclusion that the
truckdrivers were not covered by the multiemployer contract with the Iron
281
Workers to which the Employer is a party This conclusion is supported by
the fact that the contract does not refer to truckdrivers , although other em-
ployee classifications are set forth; although the contract covers a produc-
tion and maintenance unit , other employees are not covered by the con-
tract; ,truckdrivers of other employer signatories to the contract are not
represented by the Iron Workers, one of the truckdrivers involved herein
negotiated his own wages; and the wages of both truckdrivers appear to
bear no relationship to the Iron Workers contract wage scale . As we con-
clude that the truckdrivers were not covered by the contract, we find it un-
necessary to consider the Trial Examiner 's additional finding that the Iron
Workers waived jurisdiction over the truckdrivers or that the Employer
agreed to recognize the Respondent as the representative of its
truckdrivers
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge
filed on June 12, 1967, by Durell Products, Inc.,'
Durell, the General Counsel of the National Labor
Relations Board, herein the Board, issued a com-
plaint, dated July 10, 1967, alleging that Local
Union No. 174, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &' Helpers
of America, herein Respondent, violated Section
8(b)(7)(A) of the National Labor Relations Act,
herein the Act.
Pursuant to due notice, a hearing in this matter
was held before me on September 20 and 21, 1967,
at Seattle, Washington. The parties fully par-
ticipated excepting that the attorney for the Charg-
ing Party withdrew before he testified. General
Counsel's and Respondent's briefs have been
received and considered. Upon the entire record
and from my observations of the witnesses, I make
the following:
FINDINGS OF FACT
I. DURELL'S BUSINESS
Durell is a Washington corporation engaged in
the operation of a plant manufacturing aluminum
windows and doors. During the last fiscal year, Du-
rell sold goods directly to customers outside of
Washington, having over $50,000 value, and during
the same period it purchased goods from outside
Washington of a value exceeding $50,000. At all
material times Durell- has been an employer en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS
Respondent and Shopmen's Union Local No.
506, International Association of Bridge, Structural
& Ornamental Iron Workers, AFL-CIO, herein
Iron Workers, at all material times have been labor
organizations within the meaning of the Act.
'Richard A. Clark, Esq , counsel for Durell, withdrew his appearance be-
fore he testified herein.
170 NLRB No. 36
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Did Respondent threaten to picket and picket
Durell where an object was to force or require Du-
rell to recognize or-bargain with it as the represent-
ative of a unit of Durell's employees at a time
when Durell had lawfully recognized the Iron Work-
ers and a question, concerning representation may
not appropriately have been raised pursuant to Sec-
tion 9(c) of the Act?
B. The Threat to Picket and the Picketing
At material times, Durell employed two
truckdrivers, Bishop and Cytracek. They were em-
ployed as No. 1 and No. 2 drivers. On May 26,
1967,2 each signed an authorization card for
Respondent as bargaining representative. Shortly
thereafter, Respondent, through its agent,
Newsham, demanded recognition and bargaining by
Durell for the truckdrivers, and threatened to
picket in -support of such demand. Beginning on
June 12, and continuing until June, 30, Respondent
picketed Durell in support of the demand.
C. The Contract Between Durell and the Iron
Workers
From April 1 to September 15, Durell has its
busy season when it employs about 75 employees.
During its off season it employs about 50. It has
cutting, welding, finishing, and shipping depart-
ments , each having a supervisor subject to the
overall supervision of the production manager. The
shipping department regularly has six employees of
whom two are truckdrivers who spend about 90
percent of their time loading, driving, and unload-
ing.3
Prior to April 1, Durell regularly had engaged in
joint bargaining with other employers in the sash in-
dustry, each employer signing a separate agreement
with the Iron Workers, the agreements usually con-
taining similar terms . On May 24, as a result of
multiemployer bargaining with the Iron Workers,
Durell signed a new contract with the Iron Work-
ers. The other employers who were parties to the
multiemployer contract were Greenway, Belknap,
H and 17, and Van Tone. Greenway, but not the
others, was comparable in size to Durell.
None of Durell's contracts, including the most
recent, included truckdrivers in the job classifica-
tions listed as covered by the agreements.
Truckdrivers were neither, included nor,specifically
excluded.4
Durell's president gave it as his "opinion" that
truckdrivers were covered by the contracts. The
Iron Workers business representative had a similar
opinion. I find these were bare opinions after the
fact. The parties to the contracts just simply never
discussed the inclusion or exclusion of truckdrivers
in the contracts. The truckdrivers received the
fringe benefits under the contract. The truckdrivers
were listed on the seniority lists submitted by Durell
to the Iron Workers but, of course, they were listed
as operators or some other such classification enu-
merated in the contracts and not as truckdrivers.
They did not regularly perform work in the job
classifications for which they were listed..
At the time the current multiemployer contract
was signed, Greenway had a contract with Respon-
dent covering Greenway's truckdrivers, and the
Iron Workers make no claim to represent them.
The largest employer in the sash industry in Seattle
is Fentron. It has a contract with the Iron Workers
which is similar to the multiemployer contract here
involved. The Iron Workers are not considered as
representing the truckdrivers of Fentron. The Iron
Workers makes no claim to jurisdiction over the
truckdrivers of Fentron. Respondent represents the
truckdrivers at Fentron.
In addition to production and maintenance work-
ers and the truckdrivers, Durell employs carpen-
ters and glaziers who work inside the plant. At all
material times, Durell has had a contract with the
Carpenters Union covering the carpenters who
work inside the plant.
Bishop was hired not as an operator or any other
classification included in the coverage of the con-
tract but as a truckdriver. When Bishop received a
clearance slip from the Iron Workers, the portion
referring to job classification was left blank. The
Iron Workers assistant business agent, Monfrida,
told Bishop the Iron Workers did not represent
truckdrivers. Bishop negotiated wage increases on
his own behalf.
On June 6, Respondent's secretary-treasurer,
Cavano, and the Iron Workers business representa-
tive, Manning, and Durell's attorney, Clark, met in
Cavan's office. They discussed Respondent's de-
mand for bargaining for the two truckdrivers.
Cavano and Manning disagree in their testimony as
to what may have been agreed to between them.
Having observed their respective demeanors and
having considered the entire record, I credit the
testimony of Cavano5 that Manning said, after
discussion, that the Iron Workers waived jurisdic-
2 hereinafter, all dates refer to 1967 unless otherwise stated
3 Having observed the demeanor of Ernest Anderson, I do not credit his
testimony unless corroborated by credited testimony. I am convinced he
exaggerated the work performed by the truckdrivers in the plant
4 On the June seniority list, Cytracek was listed as a mechanic and Bishop
as machine operator.
' I do not, for reasons hereafter discussed, credit the testimony of Clark to
the contrary.
LOCAL UNION NO. 174, TEAMSTERS
tion over the truckdrivers and Respondent could
have them.'
William A. Roberts, a partner in the firm which
represented Respondent, testified in this case.
Richard Clark, who appeared in this case on behalf
of Durell until I raised the ethical question of an at-
torney representing a party and testifying, also
testified.' I have considered their testimony in
detail and I most carefully observed their
demeanors when they testified. I am convinced that
Roberts testified not only truthfully but accurately
as to several conversations between Roberts and
Clark on June 7 and thereafter, before the picket-
ing began. I do not find Clark was deliberately un-
truthful but rather find he probably confused con-
versations he had with Roberts with others he had
with the Iron Workers' attorney, Hafer, and others
during the same period of time. Clark did not testi-
fy with Roberts' precision nor his clarity. Clark
volunteered testimony. He contributed irrelevan-
cies as answers to simple questions. Much of his
testimony was prefaced by, "I think," indicating, in
the light of all his testimony, that he had doubt as
to its accuracy.
Crediting Roberts, as I do, I find the conversa-
tions between Roberts and Clark were substantially
as follows.
After Cavano told Roberts he had a problem with
Durell about two truckdrivers, Roberts and Clark
had several phone conversations. Clark told
Roberts he was having a problem with the Iron
Workers' attorney, Hafer, explaining that even
though Manning was willing to give jurisdiction of
Durell's truckdrivers to Respondent, Hafer was op-
posed. Clark said he was in the middle between
Respondent and the Iron Workers. There followed
further discussions and Clark then said he had
worked things out with Hafer and Clark, and
Roberts had a deal if three problems could be
worked out. Clark asked Roberts to get in touch
with Cavano about the problems and Roberts did
so. Roberts reported to Clark Cavano's solutions to
the problems and Clark said he was delighted, that
Durell and Respondent "definitely had a deal," and
Durell would negotiate with Respondent for the
truckdrivers. Roberts was satisfied that the problem
of recognition of Respondent by Durell was solved.
Shortly thereafter, Clark told Roberts that Hafer
had changed his mind and jurisdiction was not to be
given to Respondent, and consequently Clark could
not recognize Respondent.'
Concluding Findings
I find that at all material times a question con-
cerning representation of Durell's truckdrivers
' As previously noted, the Iron Workers makes no claim to jurisdiction over
the truckdrivers of Greenway or Fentron
' Roberts and Clark were classmates I advised them on the record of the
seriousness of credibility resolutions, before they testified, it having been
made clear to me that they would contradict each other on material issues.
283
might appropriately have been raised pursuant to
Section 9(c) of the Act and that consequently
Respondent did not violated Section 8(b)(7)(A) of
the Act by either its threat to picket or by its
picketing. I further find that Respondent was
picketing to enforce Durell's compliance with the
agreement among the Iron Workers, Durell, and
Respondent for recognition by Durell of Respon-
dent as representative of the truckdrivers.
In none of the contracts between Durell and the
Iron Workers was there an inclusion of truckdrivers
in the coverage. In a representation case the con-
tract between Durell and Iron Workers would not
be a bar. "The Board has consistently held that `to
serve as a bar, a contract must clearly by its terms
encompass the employees sought."'9 The contract
in this case does not in any way encompass the
truckdrivers who constitute an appropriate unit.'o
Greenway, a party to Durell's multiemployer agree-
ment with the Iron Workers, does not recognize the
Iron Workers as the representative of Greenway's
truckdrivers but rather has a contract with Respon-
dent. This is with the knowledge and acquiescence
of the Iron Workers. That Fentron, the largest sash
manufacturer in the Seattle area, recognizes not the
Iron Workers but Respondent as the representative
of its truckdrivers demonstrates what is the industry
pattern. Bishop negotiated his own wages with Du-
rell. His wage scale appears to bear no relationship
to the contract. In one instance it was testified that
a truckdriver is paid the scale of a shipping clerk, in
another he is an operator, and in another he is a
mechanic. Particularly with respect lo the current
Iron Workers contract there was not even discus-
sion of the inclusion of truckdrivers, this at a time
when Greenway recognized Respondent as
representative of its truckdrivers. The entire record
makes plain to me that the Iron Workers did not
represent the truckdrivers in the multiemployer
bargaining unit and that Respondent could legally
demand recognition by Durell of Respondent's
representative status with respect to the otherwise
unrepresented truckdrivers.
Also, I find that Manning of the Iron Workers,
after conversation with Respondent's Cavano and
Durell's Clark, agreed that Respondent and not the
Iron Workers had jurisdiction of the truckdrivers.
Within a day or two thereafter, Clark, on behalf of
Durell and after consultation with Hafer, agreed
that Durell would recognize Respondent as the
representative of its truckdrivers. Respondent was
justified in believing it was a party to a three-way
agreement and in picketing to procure enforcement
of such agreement.
Even though they had represented parties, they each chose to testify
" Hafer did not testify.
RCA Communications , Inc, 154 NLRB 34, 37.
° Manpower, Inc, 164 NLRB 287
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and the entire record, I make the following conclu-
sions of law:
1. At all material times Durell has been an em-
ployer engaged in commerce within the meaning of
the Act.
2. Respondent and the -Iron Workers are labor
organizations within the meaning of the Act.
3. The record does not establish that Respon-
dent has engaged in any unfair labor practice al-
leged in the complaint.
RECOMMENDED ORDRER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this proceeding, it is recommended that the
Board enter an order dismissing the complaint.